Julian Assange's extradition hearing day 4 due to start in about 10 minutes. We expect the hearings may wrap up early today -- the US will finish its arguments on extradition & political offenses, & the defense to make an application to allow Assange out of the dock #AssangeCase
More than just an issue of Assange being able to hear and follow the proceedings, Assange needs to be allowed to have legally privileged communications with his legal team and participate in his own legal defense. #AssangeCase
Assange in court yesterday: "What is the point of asking if I can concentrate if I cannot participate? I am as much a participant in these proceedings as I am watching Wimbledon."
Yesterday's report: "Defense: Julian Assange cannot be extradited for a political offense" defend.wikileaks.org/2020/02/26/usa…
Day 1: Defense and government opening arguments: defend.wikileaks.org/2020/02/24/usa…
Day 2: Defense debunks US claims of reckless dump and Assange-Manning conspiracy
defend.wikileaks.org/2020/02/25/usa…
defend.wikileaks.org/2020/02/25/usa…
It appears Assange has been given headphones to listen to the proceedings. We break for 5 minutes for him to test to see if this allows him to hear clearly. Judge leaves court, defense and govt lawyers testing with Julian
This does not address the issue of Assange being able to speak confidentially and continually with his own legal team to participate in his own defense, but at least he may be able to hear everything... #AssangeCase
Judge returns. Defense: short answer is the jury is out as to whether the headphones improve his ability to hear -- the issue is lawyers need to be closer to microphones
US govt: where Parliament has removed the bar to extradition for political offices, it cannot be an abuse of process. To introduce it by the backdoor is to subvert the intention of Parliament to remove it through the front door. It is not for this court to introduce the bar.
Govt says that the Extradition Act not including the political offense exemption means that Parliament have ruled it out, and that this court doesn’t have the power to re-introduce it by other means.
US lawyer James Lewis QC: offenses “of a political character… have so far defied precise definition”, emphasizing it is a difficult matter to define political offense and argues that just because it is “espionage” doesn't mean that it is necessarily political.
Lewis QC laboring the point that even though there may be a presumption that espionage is a political offense it is not the final word under English law.
One must look at the constituent elements of the offense with which he is charged, and the purpose of the crime, in determining whether it is a political offense. Explains how the murder of a dictator to create regime change in an authoritarian regime would be a political offense
Lewis QC arguing that the underlying offense must relate to a political struggle between factions in order for it to be a political offense, argues there must be a causal link between the political situation and the crime which he has committed.
US gov: There must be causal link between the crime and the political aim which is not too remote to all within the political offense exception.
Lewis QC: There is an English definition of what is a political offense and it is not purely dependent on whether there is a bright line demarcation of the name of the offense
Court in recess now -- defense to respond to US arguments regarding political offenses
USG: the gravamen of the offense is not leaking material to the press but his actions in publishing the 250,000 cables and the Iraq and Afghan War logs. Claims the USG is not “after” JA for reasons “other than the enforcement of the criminal law following its usual course”
USG: The Court does not need to resolve these issues but they demonstrate that any bare assertion that WikiLeaks was engaged in a struggle with the US Government...
...was in opposition to it or was seeking to bring about policy change would need to be examined far more closely having regard to all of these matters. They do not however arise for determination as they are entirely academic here.
Defense: It is a funny thing to be say something is “outdated” which is recognized in the UN model treaties, in the Interpol Statute and Model Agreement between the Commonwealth countries.
What is outdated is the failure to provide an exception for violent terrorist offenses, but that’s been dealt with. But in respect of non-violent offenses there is a clear and general approach...
... the UN Model Treaty, the Interpol Statute and every single US treaty, so to describe that protection for non-violent offenses is outdated is a gross extravagance of language.
Judge asks about the incorporation of the treaty in the 2003 Act. Defense says that it cannot be of legal irrelevance.
Where the treaty governing extradition to a particular country expressly provides that it should not be granted in respect of political offenses, we say it cannot be said of no legal relevance. On the contrary, it is significant in two ways:
1. Since it is the very basis on which the extradition can be sought and granted, a request for extradition that violates this protection is an abuse of process and a manipulation of process; to accede to such a request is an abuse of process
2. Any detention pursuant to the extradition request must be lawful by both domestic law & w/ general requirements of the convention & is not open to criticism for arbitrariness...
...Detention in violation of fundamental protection against extradition for a political offense would be arbitrary and in breach of Article 5
Defense: It's not sufficient to say domestic legislation is sufficient, and where there is a treaty that provides additional protection, we say that it is arbitrary not to respect that protection.
An element of the abuse of process is the failure to provide the protection within the treaty: the US are relying on the treaty for his extradition but failing to comply with the fundamental protection under the US-UK Treaty.
Defense: We say it is a non-sequitur to contend that by removing the political offense exception that Parliament necessarily excluded the international law protection against extradition for political offenses.
Parliament can never envisage all circumstances that arise but it must have allowed the protection of human rights act including Article 5 in section 87.
It is clear that Parliament left the courts exercising the abuse of process jurisdiction to make good any deficiency that resulted from the express provision.
Defense returning to this on the political offense exception in US extradition treaties:
If there was something inherently impossible for a court in England to interpret a treaty, then look at European Convention – it is not impossible for this court to interpret a treaty. Courts do it in many different contexts...
...& when the courts give effect to statute consistent w/ treaty as much as possible, then of course the court looks at the interpretation of the treaty. US saying that you cannot interpret the treaty is falsified by centuries of precedent where courts have done precisely that.
Judge asks whether the issue should be a change in government policy as opposed to seeking change
Defense: Why was he seeking to publish the rules of engagement? They were published to show that war crimes were being committed, to show they breached their own rules of engagement.
The Guantanamo files were published to show that torture was being done in the war on terror. The very definition of seeking to change government policy
And with the Iraq war logs / Collateral Murder video with Rules of Engagnement: "WikiLeaks did effect a change, this is one of the reasons policy did change", led to US withdrawal from Iraq
Issues to be dealt with after lunch break include Assange in the dock and the anonymous witnesses (whether the court but not the public can know the names of the 2 witnesses on UC Global's spying on the Ecuadorian Embassy -- defense and prosecution to confer and agree over break
And now court adjourns until 2pm GMT
Back in court, defense raising issues of Assange in the dock, unable to confidentially speak with his legal team and participate in his defense
Defense detailing problems w/ Assange's inability to communicate w/ lawyers. Judge pushing back, doesn't want to let him out of dock -- says she's happy to allow Assange/lawyers go to private room as often as they want. 'If a 3 week hearing becomes a 6 week hearing so be it'
Defense lawyer Mark Summers: I'm not sure I've conveyed the enormity of these issues. Emphasizes need to have conversations not near prison guards, US government, and microphones
(On issue of headphones: The headphones are not serving as the solution: he can hear if we are close to the microphone, but when we are not the headphones pick up other sound like typing so it is harder for him to hear us when away from the microphone.)
Judge suggests some combination of passing notes and private meetings. Defense still arguing, she says she'll let defense continue and will try not to interrupt again
Defense explains these secure docks are a recent advent (last 20 years), discusses reports of issues with secure docs
Again, here's a 2015 report from JUSTICE: "Reassessing the use of the dock in criminal trials" justice.org.uk/in-the-dock/
"the secure dock now in use did not arrive until 2000. Even today, there is no statutory requirement or judicial authority requiring their use in our courts"
"the secure dock now in use did not arrive until 2000. Even today, there is no statutory requirement or judicial authority requiring their use in our courts"
Defense says we can't break every 3 minutes for a 20-minute break. Judge says that's an exaggeration -- defense says, have you been down in the holding room? Judge: "I have not"
Defense: judge is reminded of his particular vulnerability and the nature of the evidence to be given in May. It is in as much as our interest as in the Court’s that it will be interrupted.
Then not only would his ability to properly participate be at issue, but so would it be difficult to present the evidence with any coherence.
In Ireland, Netherlands and America, defendants sit with their counsel in court and the practice around the world is that defendants sit with their lawyers.
It is clear someone can be in custody in this room without being in the glass cabin. It is frequently the case that people in the custody of the court that they do not need to be in the dock.
For particularly vulnerable defendants whose participation is compromised, the ability to sit in the well of the court is justified. Of course, you are aware you can be in custody while in the court precinct, enjoying the delights of the court canteen.
Judge accepts she has jurisdiction to address this issue
Assange stands to speak while defense making argument - judge: "we've spoken about this before...if you have something to say please communicate it through your lawyers"
Defense lawyer says this demonstrates the very issue: I'm addressing you (judge) and couldn't see Julian rising to make a statement
Defense: We are not seeking exceptional or special treatment, we are seeking the same as would be sought for any vulnerable defendant in extradition proceedings where he is bearing the burden to make his case.
Judge addressing defense's arguments, rejecting them -- "There are measures which can be taken to ensure you have adequate access to your lawyers, I’ve already made those clear."
Judge says she's happy to start later so Assange can have more time the mornings to speak with legal team. Happy to stop every hour to allow him to speak with lawyers in back room, even if that greatly extends length of hearing. Denies request to let Assange out of the dock.
Discussing last outstanding issues, when to deal with issues of anonymous witnesses, and when to have next case management hearing - being scheduled for March 30th
By 30th of March prosecution will have submitted regarding anonymous witnesses and defense will have responded -- court breaking now as defense confirming that witnesses will be available, issue is whether & when to have 2 hours of argument
Was actually Cablegate that had impact here: "Cable revealing executions of Iraqi farmer's family. Led Iraqi govt to refuse to grant US troops immunity from war crimes prosecutions. It helped spur Obama's decision to withdraw forces from Iraq"
Court back briefly for logstical back and forth about next case management hearings - at Woolwich vs at Westminster, in person vs by videolink. Another break to see if it can be held here
Court back - can convene casemanagement hearing at Woolwich April 7th, 10am, 25th March for very brief videolink appearance at Westminster, 10am. Court is now adjourned until then.
